A group blog to promote discussion, debate and insight into the history, particularly religious, of America's founding. Any observations, questions, or comments relating to the blog's theme are welcomed.

14 comments:

His position was not so simple. Read his Virginia Statute which he/it argues is a matter of "natural right." Rather in the quote you show he's describing the jurisdiction as it existed at that time (and the VA Statute notes this: a subsequent legislature could repeal it; but if they tried to, they would be repealing something that is a matter of natural right).

His position was for Virginiam his state. But on the national, Constitutional level, states were free to agree or disagree.

This is the key argument in my erstwhile blogbrother Hunter Bakers's The End of Secularism

https://www.amazon.com/End-Secularism-Hunter-Baker/dp/1433506548

The Constitution under federalism permits [or at least permitted] states to be religious or not religious. This is a true pluralism we have completely lost sight of, where today "neutrality" means erasing religion from the polity.

At least today, the Supreme Court--with the exceptions of unprincipled leftists Ginsburg and Sotomayor--stood against that much, putting a serious dent in Blaine Amendment legislation, which is openly hostile [and not neutral] toward religion.

You don't seem to mind that the Free Exercise Clause is incorporated against state and local governments. That's not consistent with "religion is left to the states." Under the latter standard, Blaine Amendments are aokay.

Jefferson's opinion on natural rights and religion is contained in his VA Statute. It's something he thought ideally should apply to all governments. That's what natural right means. Jurisdictionally, it applied to VA in the form of a statute that could be repealed by a subsequent legislature.

That's why your assertion "His position was for Virginiam his state" is at the very best misleading, worst, downright error.

Yes, but the original post is about Jefferson's view of the Constitution. Religion was left to the states. That is the sum total of the purpose of the post, and is indisputable.

As for Blaine Amendments, the argument against them is more nuanced

a) Is it constitutional to discriminate against religion in civil society, IOW, that a religious school loses rights that a non-religious school enjoys?

b) Is there a provable anti-Catholic animus, IOW, even in states like Massachusetts with an established state church, preference for Congregationalism was not the same as a hostility to Catholicism or Epicopalianism.

"a) Is it constitutional to discriminate against religion in civil society, IOW, that a religious school loses rights that a non-religious school enjoys?"

If religion is left to the states and the First Amendment doesn't get incorporated, the answer is yes. The buck stops with that particular state's law, its processes, procedures, etc. If they "amend" their constitution to include Blaine, that answers it at that particular state's level.

"b) Is there a provable anti-Catholic animus, IOW, even in states like Massachusetts with an established state church, preference for Congregationalism was not the same as a hostility to Catholicism or Epicopalianism."

But even if there were, if religion is left to the states it wouldn't matter. Making "anti-Catholic" animus a federal constitutional issue is a 14th Amendment concern. I think it's possible to argue some of the First Amendment, but not the Establishment Clause gets incorporated against state and local governments. AND even if not a First Amendment issue "Equal Protection" concerns could outlaw anti-Catholic animus.

The Bill of Rights did not apply against state and local governments until after the 14th Amendment was ratified. That's Barron v. Baltimore (1833) well before the 14th Amendment which held the BOR didn't apply against the states.

Some think "incorporation" got it wrong and that they still shouldn't apply.

Under the original constitution, states weren't free to do anything; but they had a great deal more power, especially jurisdictional power over settling matters of individual rights, prior to the Civil War.

I may need to reread Akhil Amar's book on the BOR. And you (Tom) should read it. You are informed enough to be able to separate the valuable insights he uncovers from theoretical arguments he loads into the book with which you may disagree.

I don't think any federal court or federal authority before the 14th Amendment was ratified enforced any part of the BOR against state and local governments. In Barron, they baldly held the BOR restricted the federal government only.

I think though there were some state governments and their courts who ruled as though they were bound to part or all of the BOR. I think they saw the BOR as part of that brooding omnipresence in the sky.

Well, that's why I asked about trial by jury, because that's a political right, not a natural right. IOW, societies where trials are conducted by a panel of magistrates aren't necessarily violating one's natural rights.

As for the 1A, free exercise of religion is a natural right, whereas the Establishment Clause is a political convention, which is why I don't lump them together.

It's an interesting hypothetical question. Prior to the 14 amendment, and subsequent to it as well, states did not, as far as I know ever try to abolish the right to trial by jury. It could be that did they, the "republican form of government" clause would be the place to bring the federal claim.

I wonder whether the FEC and the EC are necessarily so easily disentangled.

There would be an argument exception for a Torcaso-type religious test for statewide office, however, incorporation was clearly not contemplated in contermporaneous custom and practice.

By its plain terms, the ban extended only to federal officeholders. States were free at the time of the Founding to impose religious tests as they saw fit. All of them did. State tests limited public offices to Christians or, in some states, only to Protestants. The national government, on the other hand, could not impose any religious test whatsoever. National offices were open to everyone.

LOL. The only reason why a state violating the Free Exercise Clause of the First Amendment is an issue for federal courts to address as opposed to state courts having the final say is because of the "boring sophistic arguments" re the 14th Amendment and incorporation.

You were the one who raised this jurisdictional brou ha ha with your "religion is left to the states," mantra. As the Founders understood it, free exercise of religion was left to the states as well as establishment policy.

I was speaking in a pre-14th Amendment sense. Under modern 14th Amendment jurisprudence, the original Founding intentions, customs and practice have been rendered moot--indeed so have those who ratified the 14th 80 years later!

[Under the 14th I have no problem with Torcaso on equal protection grounds. Obergefell, yes. Its anti-scientific arguments should have been resolved democratically.]